Warren v Police

[2025] NZHC 2940

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2025-485-58

[2025] NZHC 2940

BETWEEN

JASON JOHN WARREN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 September 2025
Appearances:	Z Smart and K Pickover for Appellant R S Bedggood for Respondent
Judgment:	6 October 2025

JUDGMENT OF McQUEEN J

[1]    Mr Warren was sentenced on 25 June 2025 at the Hutt Valley District Court, following the entry of guilty pleas on the following charges:1

(a)nine charges of theft (over $1,000);2

(b)four charges of theft ($500 to $1,000);3

(c)two charges of theft (under $500);4

(d)unlawfully taking a motor vehicle;5

1      Police v Warren [2025] NZDC 13923.

2      Crimes Act 1961, ss 219 and 223(b); maximum penalty seven years’ imprisonment.

3      Sections 219 and 223(c); maximum penalty one year’s imprisonment.

4      Sections 219 and 223(d); maximum penalty three months’ imprisonment.

5      Section 226(1); maximum penalty seven years’ imprisonment

WARREN v NEW ZEALAND POLICE [2025] NZHC 2940 [6 October 2025]

(e)unlawfully getting into a motor vehicle;6 and

(f)breaching conditions of community work.7

[2]    Mr Warren was sentenced to 27 months’ imprisonment. He now appeals against the sentence out of time on the basis that the sentencing Judge should have allowed higher reductions for Mr Warren’s remorse, willingness to engage in restorative justice and rehabilitation prospects. The Crown opposes the appeal, submitting the Judge did not err and the sentence is not manifestly excessive.

[3]For the reasons that follow, the appeal is dismissed.

The offending

[4]    The dishonesty offending took place on several occasions over the period from August 2024 to January 2025. The total value of the property taken across the charges is around $24,000. Most of the thefts occurred at retail stores in Wellington and the Hutt Valley. Mr Warren often wore clothing that concealed his face during the thefts. Mr Warren also caused $2,125 of damage to a stolen vehicle.

[5]    For all but one of the theft charges, Mr Warren was serving a sentence of intensive supervision and community detention and was on bail.

[6]    Mr Warren failed to comply with the conditions of community work when he failed to report to a probation officer on 27 July 2024. He had completed 98.5 hours of the sentence and had 101.5 hours outstanding. Around the time of sentencing, the pre-sentence report records that Mr Warren had completed further hours with about 60 hours outstanding.

Decision under appeal

[7]    The Judge recorded Mr Warren’s explanation for his offending that he was extorted after a vehicle he had borrowed was confiscated. The owner of the vehicle

6      Section 226(2); maximum penalty two years’ imprisonment.

7      Sentencing Act 2002, s 71(1)(a); maximum penalty three months’ imprisonment or a fine of

$1,000.

pushed him to commit crimes to repay the debt owed by Mr Warren. The owner also supplied Mr Warren with methamphetamine, which Mr Warren said he needed to use in order to commit the offending. The Judge rejected the explanation, finding that this was offending by a recidivist criminal. The Judge highlighted that Mr Warren was sentenced to intensive supervision and community detention on 22 November 2024 for serious dishonesty offending and proceeded to commit theft again just two days later. The Judge observed that the number of charges and total amount now being dealt with is considerably more serious.

[8]    The Judge imposed a global starting point of three years’ imprisonment for the dishonesty offending and the offending involving motor vehicles. The Judge reduced the starting point by 25 per cent for Mr Warren’s guilty pleas at an early opportunity. The Judge adopted a further reduction of six months for Mr Warren’s drug addiction. This reached a term of 21 months’ imprisonment. The Judge then imposed a six-month uplift for Mr Warren’s extensive previous convictions and for offending on bail. This led to an end sentence of 27 months’ imprisonment.

Approach on appeal against sentence

[9]    Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material error in the sentence imposed and a different sentence should have been imposed.8 The focus is on the final sentence reached, rather than the process by which it is reached.9

[10]   The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Although s 250 does not use the expression “manifestly excessive”, it is  a principle that is  well-established in  the Court’s approach to determining the extent of the error in sentencing appeals.10

8      Section 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

9      Ripia v R [2011] NZCA 101 at [15].

10     Tutakangahau v R, above n 8, at [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]– [140].

Leave to appeal out of time and adduce fresh evidence

[11]   Leave to appeal out of  time  is  required. The  notice  of  appeal  was  filed 27 working days out of time because of a delay in obtaining legal aid approval. The Crown abides by the decision of the Court.

[12]   Leave to appeal out of time will be granted where it is in the interests of justice.11 Due to the short delay, the reason provided for the delay, and the lack of prejudice to the Crown arising from the delay, leave to appeal out of time is granted.

[13]   Counsel for Mr Warren, Mr Smart, seeks to adduce a letter of remorse written by Mr Warren as fresh evidence. Mr Smart says the letter was available at sentencing in the District Court, but counsel failed to provide the letter to the Court. Mr Smart says the letter should be admissible as it is credible and fresh. The Crown abides by the decision of the Court. Determining whether to adduce fresh evidence on appeal requires the Court to consider whether the evidence is fresh, credible and cogent.12 The overriding consideration is the interests of justice.13 I granted leave to adduce the letter in the circumstances where it was not made available to the sentencing Judge and given its relevance to the issues on appeal.

Parties’ positions

[14]   Mr Smart submits Mr Warren has displayed genuine remorse, which warrants a discount. Mr Smart points to Mr Warren’s entering guilty pleas at the first available opportunity and his letter of remorse, where he says he is ashamed of his offending and expresses a desire to re-enter and positively contribute towards the community. Mr Smart says Mr Warren was also willing to engage in restorative justice but his counsel at the District Court failed  to  notify  the  Court  of  this.  Mr Smart  says  Mr Warren is eager to attend alcohol and drug counselling and the Bridge Programme, and that Mr Warren is currently sober in custody. Overall, Mr Smart proposes that a further discount of 15 per cent is appropriate for Mr Warren’s remorse, prospects of rehabilitation and desire to complete restorative justice.

11     R v Lee [2006] 3 NZLR 42 (CA).

12     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

13 At [119].

[15]   For the Police, Ms Bedggood submits that, even if the sentencing Judge were provided with the letter of remorse and informed of Mr Warren’s willingness to engage in restorative justice, it would have been open to the Judge to conclude that genuine remorse had not been displayed. Ms Bedggood says the letter focuses primarily on Mr Warren, and there is limited evidence of remorse in the pre-sentence report. She also emphasises Mr Warren’s extensive history of dishonesty offending and says the uplift for this offending was lenient. Ms Bedggood notes the Police have no information in respect of the charge for breach of community work.

Discussion

[16]   The essence of this appeal is whether the end sentence was manifestly excessive given the credit applied to reflect personal mitigating factors.

[17]   The assessment of genuine remorse is necessarily evaluative and is a question of fact and judgement.14 Mr Warren bears the onus of showing that his remorse is genuine. Actions speak louder than words in such an assessment,15 such as engagement in restorative justice, the voluntary payment of reparation, efforts to remedy harm to the community and voluntary efforts to engage in a rehabilitative programme.16 The courts have held that little weight may be placed on even genuine expressions of remorse or rehabilitative efforts in circumstances of recidivist offending.17

[18]   I consider the Judge did not err in not allowing a reduction for remorse. While the Judge did not have Mr Warren’s letter of remorse and was unaware of his willingness to engage in restorative justice, the Judge expressly and firmly rejected Mr Warren’s explanation for his offending because of his recidivist offending history. The Judge referred to the fact that one of the thefts occurred on 24 November 2024, two days after Mr Warren was sentenced for serious dishonesty offending. The Judge described Mr Warren as “a recidivist criminal who … walked out of court and went back to what he was doing.”18

14     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, (2020) 29 CRNZ 381 at [24]; Sweeney v R

[2023] NZCA 417 at [18].

15     Parkinson v R [2024] NZHC 2853 at [33].

16     Moses v R, above n 14, at [24]; Kohu v R [2023] NZCA 343 at [40]; Hansch v Police [2014] NZHC 2438.

17     R v Ngamo [2009] NZCA 512 at [9].

18     Police v Warren, above n 1, at [4].

[19]   This, in my view, is a strong indication that the Judge would not have accepted that Mr Warren’s expressed remorse is genuine. This conclusion would have been clearly open to the Judge. Mr Warren has 80 previous convictions for dishonesty offending accrued since 2003. This case is similar to Ngamo v R, where the Court of Appeal held that it was open to the sentencing Judge to place little weight on the appellant’s expression of remorse given the appellant’s extensive criminal history.19 The appellant there had amassed 120 previous convictions over 35 years, including nine for burglary and 13 for receiving.

[20]   In any event, as Ms Bedggood submits, the letter focuses on Mr Warren’s position rather than addressing the harm caused by his offending. The Judge had before him the pre-sentence report that records Mr Warren telling the report writer that at the time of his offending, he did not consider the impact of his offending on his victims but once sober, he feels ashamed of his actions. I consider that it would have been open to the Judge to conclude that genuine remorse had not been demonstrated, even if the Judge had received Mr Warren’s letter.

[21]   I do not consider the remaining factors warrant a further reduction. Willingness to engage in restorative justice is not enough in itself to justify a separate discount in the absence of genuine remorse.20 It was also apparent to the Judge from the alcohol and drug report provided for sentencing that referral to a treatment programme was already underway. The pre-sentence report indicated that no progress had been made by Mr Warren in relation to the special condition of his existing sentence of intensive supervision requiring assessment and counselling for alcohol and other drug use, prior to his remand in custody. I consider Mr Warren’s rehabilitative efforts do not warrant a further reduction beyond the six-month (or just over 16 per cent) reduction imposed by the Judge for the appellant’s addiction issues.

[22]   Accordingly, the sentence is within the range that can properly be justified by accepted sentencing principles and is not manifestly excessive.

19     R v Ngamo, above n 17, at [9].

20     Pene v R [2023] NZHC 1234 at [27]; Johnson v Police [2023] NZHC 3302 at [16].

Result

[23]The appeal is dismissed.

McQueen J

Solicitors:

Luke Cunningham Clere, Wellington for Respondent